65 NSWLR 75
R v Chiron [1980] 1 NSWLR 218
R v Tan Phuong Le (No 3) [2010] NSWDC 37
Taiapa v The Queen [2009] HCA 53
240 CLR 95
The Queen v Khazaal [2012] HCA 26
246 CLR 610
Weiss v The Queen [2005] HCA 81
Source
Original judgment source is linked above.
Catchwords
319 ALR 207
Oblach v The Queen [2005] NSWCCA 44065 NSWLR 75
R v Chiron [1980] 1 NSWLR 218
R v Tan Phuong Le (No 3) [2010] NSWDC 37
Taiapa v The Queen [2009] HCA 53240 CLR 95
The Queen v Khazaal [2012] HCA 26246 CLR 610
Weiss v The Queen [2005] HCA 81
Judgment (3 paragraphs)
[1]
Solicitors:
Legal Aid NSW - Applicant
Commonwealth Director of Public Prosecutions - Respondent Crown
File Number(s): 2013/37815
Decision under appeal Court or tribunal: District Court of NSW
Jurisdiction: Criminal
Date of Decision: 14 February 2014
Before: Blackmore SC DCJ
File Number(s): 2013/37815
[2]
Judgment
HOEBEN CJ at CL:
Offence and sentence
The applicant was tried before Blackmore SC DCJ and a jury in the District Court of New South Wales at Sydney. On 29 October 2013 he was arraigned and pleaded not guilty to a single count on indictment as follows:
"Between about 26 January 2013 and 6 February 2013 at Sydney in the State of New South Wales and elsewhere did attempt to possess a substance, the substance having been unlawfully imported, the substance being a border controlled drug, namely methamphetamine and the quantity possessed being a commercial quantity."
The charge was brought pursuant to s 307.5 of the Criminal Code Act 1995 (Cth) (the Code) which states:
"(1) A person commits an offence if:
(a) The person possesses a substance; and
(b) the substance was unlawfully imported; and
(c) the substance is a border controlled drug or border controlled plant; and
(d) the quantity possessed is a commercial quantity.
Penalty: Imprisonment for life or 7,500 penalty units or both.
(2) Absolute liability applies to paragraphs 1(b) and (d).
(3) The fault element for paragraph (1)(c) is recklessness.
(4) Subsection (1) does not apply if the person proves that he or she did
not know that the border controlled drug or border controlled plant was unlawfully imported."
It was alleged that the applicant was guilty of this charge on the basis of s 11.1 of the Code which provides that a person who attempts to commit an offence is guilty of the offence of attempting to commit that offence and is punishable as if the offence attempted had been committed.
The applicant's trial proceeded from 29 October 2013 to 12 November 2013. The issue at trial was duress. At the conclusion of the defence case after argument, his Honour ruled that he would not leave the issue of duress to the jury. Having no other defence, the applicant changed his plea to guilty.
The applicant seeks leave to appeal against his conviction. The applicant submits that his Honour applied the incorrect test when determining whether to leave duress to the jury. He submits that had the correct test been applied, duress should have been left for the jury's determination.
On 17 December 2013 his Honour heard sentencing submissions. On 14 February 2014 his Honour sentenced the applicant to 8 years and 4 months imprisonment with a non-parole period of 4 years and 2 months. The sentence commenced on 6 February 2013, the date of the applicant's arrest. The applicant will be eligible for parole on 5 April 2017 and his sentence expires on 5 June 2021.
The applicant also seeks leave to appeal against his sentence. The applicant submits that his Honour erred by failing to take duress into account in any respect when sentencing him.
The Crown case
The Crown case was largely unchallenged. In late January 2013 two boxes containing paint tins were delivered to Australia from Iran by DHL couriers. The addressee was "Mr Schoening". On 30 January 2013 a customs officer examined the contents of the boxes at the DHL "Customs Control Bond Area". Each box contained four paint buckets. In the corner of one of the boxes was a crystal like powder which tested positive for methamphetamine.
On 31 January 2013 the boxes were transferred to the Australian Federal Police (AFP). While with the AFP the contents of the paint buckets were tested and found to contain 8.75kgs of pure methamphetamine with a wholesale value of $2.5 million and a "street value" of $8 million. The contents of the buckets were replaced with an inert substance comprising flour, sugar, methylated spirits and silicone, then resealed and placed in their original packaging.
AFP officers made inquiries about the addressee of the boxes, Mr Schoening. On 5 February 2013 a search warrant was executed at Mr Schoening's premises. Mr Schoening was present at the execution of that warrant. He was spoken to and the AFP determined that he was an innocent recipient of the boxes, having agreed to take delivery of them for a friend "Faraz", without knowing their true contents. Mr Schoening intended to pass the paint buckets onto a person who it transpired was the applicant.
On 3 February 2013 the applicant, an Iranian born German national who was studying medicine in London, flew into Australia on a temporary visa. He hired a car and rented a two bedroom apartment in Clovelly. The apartment in Clovelly had been organised in advance by the applicant's co-offender, Reza Afrasiabi. Under the guidance of AFP officers, Mr Schoening made arrangements with the applicant to deliver the boxes to him. On 6 February 2013 in accordance with those arrangements, Mr Schoening met the applicant at the Nobbys Beach car-park in Newcastle and gave him the two boxes. After the applicant collected the boxes, he drove to Big W in Newcastle, purchased four plastic buckets and two pairs of gloves, and then drove back to the Clovelly apartment.
On 6 February 2013 AFP officers entered the Clovelly apartment pursuant to a search warrant. The applicant was alone in the unit. There was clear plastic sheeting secured with masking tape covering the carpet of the master bedroom in the unit and eight paint buckets were on top of the plastic sheeting. In the bedroom was a screwdriver and a plastic bin with filter paper at the top secured with pegs. The bathroom was covered in plastic sheeting. AFP officers located two SIM cards, an iPhone, a Nokia phone, $2,550 in cash, a German passport belonging to the applicant and other documents.
The applicant was arrested and taken to AFP headquarters in Sydney. In the car journey AFP officers discussed with the applicant the possibility of his participation in a controlled operation to determine who the drugs "were going through". During this conversation the applicant informed the officers he had family in Iran. He was asked whether "these people" could get to his family and replied "No. It's not like that." At AFP headquarters the applicant participated in a recorded conversation with AFP officers about his willingness to assist police by taking part in a controlled operation. He was asked "And do you agree that we discussed a number of issues, including the safety and welfare of your family in Iran?" and responded "Yes".
The applicant called his friend, Hani, who did not answer but called him back. This call was on speaker phone. AFP officers heard the applicant tell Hani to tell his sister that he had been arrested. The applicant agreed to participate in a controlled operation and made calls to persons overseas purportedly involved in the import operation. The calls were made on loud speaker and monitored by AFP officers but not recorded. As the calls were in Farsi, AFP officers relied on the applicant to report the contents of the call. The calls were stopped when it became apparent that the recipients were aware of law enforcement involvement.
The applicant was charged and remanded in custody. On 9 February 2013 AFP officers spoke to the applicant about whether he would provide an induced statement. During that meeting the applicant told officers that the only reason he was in Australia was because of threats to his family. The applicant agreed to provide an induced statement. Ultimately, it was not provided because AFP determined it would have no purpose. Evidence was adduced of the applicant's communications with Mori, one of the organisers of the applicant's participation in the import. AFP officers found a Viber message on the applicant's phone, between the applicant and Mori, from 29 and 31 January 2013 organising accommodation, a visa and how many sheets of filter paper to take.
Evidence of a number of intercepted and translated telephone calls between the applicant and others was also adduced. During some of these calls the applicant was given directions about how to proceed in Australia, in relation to the contents of the boxes. On 11 February 2013 the applicant's co-offender, Mr Afrasiabi was arrested at Sydney Airport attempting to leave Australia. Mr Afrasiabi was described by AFP officers as "the shore party for the collection".
Defence case
The applicant did not materially challenge the Crown case. He contended that he did the acts alleged because he was acting under duress. The applicant gave evidence. He was born in September 1990 in Germany where his father was working as a gynaecologist. By 1997 the family, including the applicant, had moved back to Iran where the applicant attended school. When he was aged 17 the applicant was sent to London to complete his schooling so as to avoid compulsory military service in Iran. After gaining his A Levels he commenced tertiary studies in medicine in London in 2009.
The applicant gave evidence that he had never been charged with a criminal offence. He was also asked "Have you ever had any involvement with drugs at all?" and answered "Not at all". However, this answer was later qualified. He had used illicit drugs previously but had not been involved in their supply, importation or manufacture. The applicant explained that when he initially answered the question about his involvement with drugs he "understood it as a question of "have you ever dealt with - have you ever dealt with drugs, supplied, distributed, manufactured, trafficked anything to do with that kind of stuff, not the recreational use of drugs".
The applicant obtained student finance from Germany and the UK to fund his medical degree. He sourced an income from the rent he received from a property he owned in Germany and money sent by his father from Iran to his sister and himself in London.
On 19 December 2012 the applicant flew from London to Iran to spend the Christmas/New Year period in Tehran. A few days after he arrived, he got a call from a friend inviting him to a Christmas party that evening at an apartment. The applicant attended the party where he met a man named "Ashkan" who asked the applicant about his studies, his citizenship and travelling overseas. The applicant and Ashkan exchanged phone numbers. The next day the applicant received a call from Ashkan asking him to go out that evening and the applicant agreed. After driving around and getting some dinner, the applicant and his friend, Rusbai, Ashkan and his friend, Farshid, went to an apartment in a wealthy area of Tehran.
In the apartment was a small group of people. The applicant was introduced to the owner of the apartment who was a man aged between 30 and 35 named "Ali". Ali told the applicant that he had a company in Tehran working with countries around the world and said he was expanding into Australia. He said that he needed someone to travel to Australia, meet one of his partners, receive something and bring it back. He offered the applicant $10,000 but the applicant told him he was not interested.
The next day the applicant received a phone call from Farshid (the friend of Ashkan) referring to Ali's previous offer and now offering the applicant $20,000 to do it. The applicant declined again and hung up. The applicant understood that his friend Rusbai had received an equivalent offer and had indicated to the applicant that he might take it up.
On 4 January 2013 the applicant returned to London. When he returned he made contact with his friend Hani and told him about the offer he had received in Tehran. About a week after he returned, the applicant was in his car in London waiting for Hani to buy some cigarettes. He received a call from Farshid in Iran who said "Listen Docky, we have given you an offer here that is very generous and many people here would kill for or die for, but you don't seem to appreciate that, nor do you seem to appreciate who we are …". Farshid told the applicant that he knew where his father's medical practice was located, where his mother did her shopping, where his sister went to school and what car picked her up every morning. He suggested that each of his mother, father and sister might come to some harm at the hands of criminals. Hani returned to the car during the telephone call. After the call ended, the applicant told Hani about the contents of the call.
Two days later, the applicant received two DHL parcels. Each parcel contained 17 sheets of filter paper. One of the parcels contained 30ml of what appeared to be medication. The following day the applicant received a call from Ali in Iran. He asked whether the applicant had received the parcel. The applicant said that he had but pleaded that he did not want to have anything to do with it. Ali told the applicant that he was serious and that he must promise to do what he said. He also told the applicant that he should refer to him as "Mori" and should refer to Farshid as "Arash".
On 17 January 2013 the applicant received a call from Arash telling him to stay at home that evening. On the evening of the same date, there was a knock on the door of the applicant's London unit and a man handed the applicant two packages wrapped in newspaper which contained £12,500. After the delivery, the applicant received another call from Arash asking him to send the money to Rusbai, the applicant's friend, who was by that stage in Indonesia. On 21 January 2013 the applicant "wired" Rusbai two amounts: £3,300 and then £2,700. On 22 January 2013 the applicant received a further call from Arash instructing him to send £1,300 to Mr Schoening in Australia, which he did.
Sometime in January, the applicant was contacted and told he should prepare to travel to Australia in early February. He booked a return plane ticket with the remainder of the money he had been delivered. He was told that an apartment had been booked for him and that he would be asked to meet one of the partners and receive something which he was to take to the apartment and leave there. The applicant sent an email to his medical school head attempting to give an explanation for his impending absences from lectures. His visa for Australia came through and he flew to Australia via Korea. When he arrived, he rented a car and bought a SIM card at the airport, then drove to the real estate agent's office where he waited until he was able to pick up the keys for the Clovelly apartment.
The applicant was aware that he was in Australia to pick up a parcel that was said to contain paint. However, he was suspicious that it somehow involved drugs. He made a number of calls after arriving in Australia to his friend Hani in London, to Rusbai in Indonesia and to Arash or Mori in Iran. On 4 February 2013 the applicant went sightseeing in Sydney. On 5 February 2013 he received instructions from Mori telling him that he was to take delivery of the parcel the next day.
On 6 February 2013 the applicant got a new SIM card under the fake name of "Dev Patel", again at the instruction of Mori. The applicant drove to Newcastle to meet with Mr Schoening. He received the boxes from Mr Schoening and then called Mori, who gave him instructions to buy a number of items. The applicant purchased some buckets from Big W in Newcastle, a spatula, tape and other buckets from Big W at Rockdale when he returned to Sydney.
By 9.20pm on 6 February the applicant had returned to the Clovelly apartment. He called Mori for further instructions and was told to cover the bathroom in plastic, then attach filter paper to the buckets he had purchased and tip the paint from the boxes received from Mr Schoening into the buckets. He was in the process of doing this when police arrived.
After he was arrested and was in the car travelling to the police station, the applicant said that he told AFP officers that he had been controlled by people in Iran and that his family was vulnerable and in danger. After he reached the police station, the applicant called his friend Hani to let him know that he had been arrested so that Hani could "warn" his sister and notify his parents.
The applicant agreed to participate in a controlled operation to assist police to get further information about the people who were directing him. The applicant had a number of missed calls from Mori, so he returned these calls from the police station. The first call cut out and Mori called back. During the second call Mori told the applicant not to worry as "these are just paint samples" and then hung up. Mori called again and gave the applicant names and contacts to give the paint samples to but it was clear by that point that Mori was aware that police were involved. This was the last call between the applicant and Mori.
On 9 February 2013 the applicant spoke with a solicitor who had been organised by his sister. He also spoke to his sister who called him from London. That same day the applicant saw AFP officers again and told them "It wasn't stupidity or greed that brought me here, but my concern for the welfare of my family".
The applicant's friend, Hani, gave evidence. He said that the applicant told him in January 2013 about the offers in Tehran to pay him to pick up a parcel. He explained that he was present for part of the call from Iran when the applicant's family was threatened. Hani said that the applicant told him about the parcel he received in London containing the filter paper and the package of money. He discussed with the applicant his options and said that the applicant was prepared to do anything to ensure his family's safety.
The applicant's sister, Jasmine, gave evidence. She confirmed the applicant's evidence about his family and financial circumstances. She also said that when she spoke to him on 9 February 2013 he asked "Are mum and dad safe?".
The applicant's ex-girlfriend, Mona Nademi, gave evidence. She spoke about a time in January 2013 when the applicant appeared distant and unresponsive. She said that he told her that he was scared and became quite emotional. He also told her that his family were not safe. He refused to provide Ms Nademi with any further detail.
A document from the Commonwealth Attorney-General's Department website titled the "Transparency International Corruption Deceptions Index 2012" was tendered in the applicant's case. It showed that Iran was ranked 133 in the world (out of 176) in terms of perceived levels of corruption.
Proceedings in the District Court
At the conclusion of the defence case, the primary judge considered whether he would leave the issue of duress to the jury. In doing so, his Honour relied heavily upon the decision of Berman SC DCJ in R v Tan Phuong Le (No 3) [2010] NSWDC 37. It should also be noted that his Honour was not referred to s 13.3 of the Code, nor was his Honour referred to The Queen v Khazaal [2012] HCA 26; 246 CLR 610. The submissions to his Honour relied primarily on Taiapa v The Queen [2009] HCA 53; 240 CLR 95 and Oblach v The Queen [2005] NSWCCA 440; 65 NSWLR 75.
The primary judge noted that the onus of proving that an accused was not acting under duress remained on the Crown and that it must be proven beyond reasonable doubt. His Honour also noted that an accused had an evidentiary onus before the issue would be left to the jury's consideration. His Honour said:
"Unless it is reasonably possible that an accused was acting under duress the judge should not allow that defence to be put to the jury. Another way of expressing the same test is whether a properly instructed jury could accept that there is a reasonable possibility that an accused was acting under duress. If the answer is no then the issue of duress should not be left to the jury's consideration." (Judgment 2.2)
His Honour summarised the applicant's evidence of duress and that of his three witnesses. For the purposes of deciding whether duress should be left to the jury, his Honour said that he took that evidence at its highest and accepted all that the applicant had said in evidence in chief about the threats that had been made to him.
His Honour referred to s 10.2 of the Code and noted that this contained an objective element. His Honour observed:
"The place of an objective test in defence of duress is the recognition of the circumstance that the defence operates to excuse misconduct. Duress does not operate because an accused's conduct was involuntary but it is a concession to him in frailty." (Judgment 3.3)
On that issue the primary judge relied upon the observation of Spigelman CJ at [57] in Oblach:
"57 … To introduce a focus on the "personal characteristics of (the) particular accused" (R v Conlon [1993] 69 A Crim R 92) or "the circumstances as the accused perceived them to be" (R v Hawes [1994] 35 NSWLR 294) is to reintroduce a subjective element which is inconsistent with the text of s10.2."
His Honour identified his task as follows:
"… I do not need to decide anything in relation to subs (2)(a) because, even taking the accused as he was at the time and assuming the truth of his evidence-in-chief, I am satisfied that there is no reasonable possibility that a jury would find that there were reasonable grounds for the accused's beliefs, that there was no reasonable way that the threat could be rendered ineffective and that his conduct was a reasonable response to the threat. It is important to understand that when looking at s 10 the focus is on whether the threat could be rendered ineffective and, in particular, whether the accused reasonably believed that there was no reasonable way that the threat could be rendered ineffective. Thus consideration as to the nature of the accused's conduct, how serious it was and how illegal it was do not come into play. Those considerations will come into play very much with regard to subpara (2)(c)." (Judgment 5.5)
His Honour then reviewed the factual circumstances, which have been set out above. Having done so, his Honour said:
"Taking the accused's evidence at its highest, supported as it is to an extent by the evidence of Hani, and also by his girlfriend, Mona, a jury could accept that a threat to the lives of the accused's parents and sister in Tehran had been made and that as a result he felt compelled to act on the threat by complying with the orders of Ali and Arash, but of course that is only one leg of the statutory test for duress, set out above.
The real issue was whether there was no reasonable way that the threat could be rendered ineffective and whether his conduct was in fact a reasonable response to the threat that was made. Reasonableness in this context is not designed to allow people to choose for themselves whether to obey the law." (Judgment 10.4)
His Honour reviewed the evidence of the applicant to the effect that there was no reasonable way that the threat to his family could be rendered ineffective. In relation to the applicant's failure to warn his parents in Tehran, the primary judge observed that there was clear evidence that his parents were sufficiently wealthy to have bought air tickets to leave the country immediately, that they held German citizenship and owned houses in Germany. His sister owned a property in England. By way of comment, his Honour said:
"Clearly it would have been highly inconvenient to simply up and leave the country for a short period of time, but the alternative was that the accused would carry out a very serious crime. Further, the commission of the crime was going to take quite some period of time to complete.
When he had completed the task assigned there was no guarantee that his parents would be safe. All it would have proved is that he was an effective agent to use in such ventures. In other words by leaving them in harm's way he effectively left himself open for a similar approach to be made again. The only way to avoid any of those consequences was to advise the parents and his sister to move." (Judgment 11.7)
His Honour rejected the reasons put forward by the applicant for not telling his family of the threats and said:
"I do not accept the reasons provided by the accused could be found by a jury as a reasonable basis for not informing his family of the threat and leaving at least up to them to decide whether to leave or not. His father was not a child. He was a doctor who had trained in Germany and was now living in Tehran.
If the accused wanted to impress on his father the seriousness of the threat he had a number of further avenues potentially available for him." (Judgment 12.6)
The primary judge observed that the applicant could have approached the British police, Interpol or even the Australian police to assist in advising his family of the nature of the threat and its seriousness. His Honour took into account that the applicant knew next to nothing about the persons making the threat and therefore the likelihood of them implementing it. His Honour further observed that once the family were safe, other options could have been explored by the applicant to nullify the threat. His Honour took into account that not only did the applicant have available to him the British, German or Interpol police but he could also have reported the matter to the Australian police which would have been another obvious course to take. His Honour found:
"No jury could otherwise than conclude that this was a reasonable way to effectively nullify the threat without the accused carrying out the crime for which he is charged." (Judgment 14.5)
The primary judge observed that the safety of the applicant's family in Iran did not materially change from the time that he arrived in Australia intent on carrying out the offence to when he was arrested and agreed to assist the police. When he entered that agreement with the police he did not know that the alleged threat would not be carried out. His Honour considered that to suggest that the police in Australia would not have been able to create a scenario that made it appear that the applicant had been arrested on the one hand whilst at the same time using him to assist them was fanciful. His Honour further noted that no cross-examination was undertaken of the police called in the case to suggest that they could not carry out such a task.
His Honour's final observation was that the offence was very serious and had the potential to affect thousands of people. In those circumstances, mere inconvenience would never be sufficient to make out duress.
The appeal - submissions and consideration
In relation to his conviction, the applicant relied upon a single ground of appeal:
His Honour applied the wrong test or otherwise erred in determining that duress should not be left to the jury.
Section 10.2 of the Code provides:
"(1) A person is not criminally responsible for an offence if he or she carries out the conduct constituting the offence under duress.
(2) A person carries out conduct under duress if and only if he or she reasonably believes that:
(a) a threat has been made that will be carried out unless an offence is committed; and
(b) there is no reasonable way that the threat can be rendered ineffective; and
(c) the conduct is a reasonable response to the threat.
(3) This section does not apply if the threat is made by or on behalf of a person with whom the person under duress is voluntarily associating for the purpose of carrying out conduct of the kind actually carried out."
Section 13.3 of the Code provides:
"13.3(1) (1) Subject to section 13.4, a burden of proof that a law imposes on a defendant is an evidential burden only.
(2) A defendant who wishes to deny criminal responsibility by relying on a provision of Part 2.3 (other than section 7.3) bears an evidential burden in relation to that matter.
(3) A defendant who wishes to rely on any exception, exemption, excuse, qualification or justification provided by the law creating an offence bears an evidential burden in relation to that matter. The exception, exemption, excuse, qualification or justification need not accompany the description of the offence.
(4) The defendant no longer bears the evidential burden in relation to a matter if evidence sufficient to discharge the burden is adduced by the prosecution or by the court.
(5) The question whether an evidential burden has been discharged is one of law.
(6) In this Code:
evidential burden, in relation to a matter, means the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist."
It was common ground that the words "reasonably believes" in s 10.2(2) of the Code require that the actual belief held by the person must be objectively justifiable, taking into account the objective circumstances of the person, but not their personal circumstances or the circumstances as they perceive them to be (Spigelman CJ and Hulme J in Oblach v R at [55] - [60] and [88] - [93]).
The applicant submitted that when one applies s 13.3 of the Code the question is not [as his Honour specified] whether there is a reasonable possibility that a matter exists or whether there is a reasonable possibility that a jury could accept that a matter exists. Rather, it is the text of s 13.3, in particular s 13.3(6), which must be applied not the general law. (As already indicated, the reason why his Honour applied the test which he did is because he was not referred to s 13.3).
The applicant emphasised the word "suggests" where appearing in s 13.3(6). He submitted that all that was necessary for him to do was to suggest the reasonable possibility of the existence of a relevant matter, i.e. duress. The applicant submitted that this sets out a low threshold whereby the defence need only adduce or point to evidence that places before the Court "for consideration" a particular defence. In that regard, the applicant relied upon the observation of the plurality (Gummow, Crennan and Bell JJ) in The Queen v Khazaal where their Honours said:
"73 …The dispute was narrowly confined: was the evidential burden (as defined in s 13.3(6)) discharged in respect of the respondent's reliance on s 101.5(5) so as to require a direction from the trial judge in the terms proposed by the respondent?
74 It may be accepted that the respondent was right to contend that the operative words in s 13.3(6), "adducing or pointing to evidence that suggests a reasonable possibility" in relation to the relevant negative state of affairs in s 101.5(5) required no more than slender evidence. The prosecution did not disagree. It may also be accepted that, for the purposes of establishing whether the evidential burden (as defined in s 13.3(6)) has been discharged, the evidence may be taken at its most favourable to the accused."
The applicant submitted that in accordance with The Queen v Khazaal, s 13.3 merely requires consideration of whether the defendant is able to point to "no more than slender evidence" that suggests a reasonable possibility of each of the requirements of duress under s 10.2. He submitted that it also requires that evidence is taken at its most favourable to the accused. The applicant submitted that his Honour erred not only in failing to consider s 13.3 of the Code but in not considering The Queen v Khazaal which was decided after the decision of Berman DCJ in Le .
The applicant submitted that in deciding to remove the defence of duress from the jury, the primary judge made a number of evaluative judgments about the evidence. The applicant submitted that in so doing, his Honour went further than was required to determine whether he (the applicant) had discharged the evidential burden. The applicant submitted that the primary judge also failed to consider the evidence at its most favourable to him and took into account inferences to be drawn in favour of the prosecution.
The applicant submitted that each of the following findings made by the primary judge disclosed such an error.
1. The applicant should have told his family about the threat so that they could leave Iran as this was the only way to avoid the possibility that he would be asked to offend again. The applicant's reasons for not informing his family were not reasonable.
2. The applicant could have approached police to help him advise his father about the seriousness of the threat. The applicant's belief that police could not assist him was not reasonable.
3. The circumstances in which the threats were said to have been made did not disclose any reason for the applicant to believe that the threats were "even real".
4. Organising for his family to leave Iran as an alternative to carrying out the offence "might have involved some temporary inconvenience or even long term inconvenience" but appeared to be a reasonable course.
5. The applicant could have informed police in Australia of the threats and "to suggest that the police in Australia would not have been able to create a scenario that made it appear that the accused had been arrested on the one hand whilst at the same time using him to assist them is frankly fanciful".
The applicant submitted that it was sufficient that his Honour was able to identify evidence that suggested the existence of each of the limbs of duress. He was not required to proceed further and to assess whether the evidence was credible or reasonable or establish that there was a reasonable possibility that he was acting under duress. The evidence needed to be no more than "slender" as that term was used in The Queen v Khazaal.
The applicant submitted that a trial judge should exercise caution before withdrawing a defence from a jury. On this issue the applicant relied upon Lindsay v R [2015] HCA 16; 319 ALR 207 in relation to the partial defence of provocation. French CJ (Kiefel, Bell and Keane JJ agreeing) emphasised the need for caution before deciding to take the partial defence away from the jury, recognising that the particular defence is a concession to human frailty, involves both subjective and objective elements, and that "an assessment of the response of the ordinary person to the outrage which the provocative conduct might have engendered in the accused, will usually depend upon a range of possible findings" (at [28]). French CJ endorsed the need for restraint in such decisions "lest the court usurp the function of the jury" (at [39]).
The applicant submitted that the defence of duress even under the Code is not unlike the partial defence of provocation in that it also is a concession to human frailty involving subjective and objective elements where assessment of the ordinary person's response to the threats will depend on a range of findings. The applicant submitted that the need for restraint in removing a defence from the jury's consideration applies equally to duress.
The applicant submitted that his Honour's failure to apply the correct test in deciding whether to leave the defence of duress to the jury engaged s 6(1) of the Criminal Appeal Act 1912 (NSW) because it was a wrong decision on a question of law. The applicant submitted that if the correct test had been applied with the necessary restraint, his Honour should not have withdrawn the applicant's defence of duress from the jury. He submitted that in withdrawing the defence, the applicant lost a real chance of an acquittal such that the Court would be persuaded that a substantial miscarriage of justice has actually occurred.
Consideration
As earlier noted, the primary judge was not given the assistance to which he was entitled when considering this matter. His Honour should have been referred to s 13.3 of the Code and should have been referred to The Queen v Khazaal. The absence of that assistance gave rise to a risk that his Honour might err when applying s 10.2 of the Code.
I have concluded that the submissions by the applicant in support of the ground of appeal should be accepted and that the appeal against conviction should be allowed.
Some further elucidation of the meaning to be given to s 13.3(6) was provided by French CJ on this issue, although the Chief Justice was not part of the plurality in The Queen v Khazaal. On this issue, French CJ said:
"11 The reference to He Kaw Teh in the Explanatory Memorandum tends to suggest that the definition of "evidential burden" in s 13.3(6) was not intended to change the general law. The term "reasonable possibility" was used by this Court in Taiapa v The Queen in relation to the evidential burden on an accused to raise the defence of compulsion under s 31(1)(d) of the Criminal Code (Q). The Court referred to the "evidential burden" as requiring the accused to "identify some basis in the evidence raising as a reasonable possibility the existence of reasonable grounds for his belief". Nevertheless, it is the text of s 13.3(3), rather than the general law, that must be applied in determining whether an evidential burden imposed by the Code has been discharged.
12 A defendant bears the evidential burden, as defined, in relation to a defence under s 101.5(5). If that burden is discharged, the prosecution bears the legal burden of negativing the defence beyond reasonable doubt. The statutory collocation "evidence that suggests a reasonable possibility" is not readily amenable to translation into other terms. But, applying the ordinary meaning of the words of the definition, it is sufficient for the disposition of the Crown's appeal that s 13.3(3), read with s 13.3(6), requires evidence that is at least capable of supporting the inference that the matter to which the evidential burden applies "exists or does not exist." This approach reflects the general law position with respect to the evidential burden. If no such inference is able to be drawn from the evidence there is no logical basis for saying that the evidence suggests that inference as a reasonable possibility. Evidence which is merely consistent with or not inconsistent with such a possibility does not "suggest" it. The interaction of the "evidence" and the "possibility" in such a case may be like that of ships passing in the night. Importantly, as s 13.3(5) provides, the question whether an evidential burden has been discharged is one of law. In that respect also the Code and the general law coincide."
By not applying s 13.3 of the Code to the evidence of duress before him, his Honour applied too stringent a test. Moreover, by challenging in a number of respects the evidence of the applicant as to his process of reasoning, his Honour went beyond what was required by s 10.2 of the Code and trespassed in part, on the function to be performed by the jury. By setting out inferences favourable to the Crown, it could not be said that his Honour was treating the evidence at its most favourable to the applicant.
The applicant's evidence taken at its most favourable to the applicant and corroborated in part by his friend Hani and his sister Jasmine, was sufficient to discharge his evidentiary burden in respect of the three limbs of duress in s 10.2(2) of the Code.
There was no issue that the applicant had discharged the burden in relation to the first limb of duress - s 10.2(2)(a) and his Honour so found.
In relation to the second limb - s 10.2(2)(b), the applicant provided an explanation for why he did not tell his family of the threat and why he had not contacted the authorities. The effect of his evidence was as follows. He thought about contacting the British police, but did not do so because he did not think that they would be able to do anything in Iran (T.288). He was concerned that if he told the British police and they were ineffective, it would put himself in jeopardy if he then decided to comply with the directions coming from Iran. He thought about contacting police in Iran but did not do so because of the risk that he would put himself in jeopardy and because of the inefficiency and systemic corruption which he perceived in that police force (T.289-90). He thought about telling his father about the threat but did not do so because of his father's health problems and the risk that the stress of it would debilitate him further in circumstances where he doubted that his father could respond to the threats in any event (T.292). The applicant concluded that "The only way in which I could absolutely guarantee that no harm was going to come to my family is if I do as I am told" (T.292.7).
In cross-examination he was asked about alternative ways of dealing with the threats and gave this evidence:
He did not mention the threats to his older sister because if he did, she would be certain to tell his parents.
He did not give his family the option to leave Iran because it would be asking too much of them and by raising the threats with his family, his father might wish to do something other than leave, such that the situation "could get a lot messier and a lot worse than it already is" (T.454).
He did not attend the Iranian Embassy or Consulate because they were closed in London at the time (T.457).
He could have attended the Germany Embassy to seek advice but "to what end" (T.457).
He could have spoken to German police about the threats when he went there on 30 January 2013 to deal with an unrelated court matter but did not do so for the same reasons that he did not approach the British police (T.458).
He did not speak to the Customs Officers in Australia because he was afraid that it would put the whole plan in jeopardy and anger the people in Iran making the threats (T.458).
He thought about contacting the Australian authorities after arriving in Australia but was worried about what would happen when he returned to the UK (T.458).
This evidence discharged the slender evidentiary burden required of the applicant under s 13.3. All that s 13.3 of the Code required was evidence that suggested the reasonable possibility of the existence of duress as defined. The detailed evidence of the applicant was sufficient. It then became a matter for the jury to assess that evidence in the context of the overall Crown case and decide whether the Crown had negatived duress.
In relation to the third limb of duress - s 10.2(2)(c), the applicant did not give evidence in chief that directly answered the question of whether he had a belief that assisting in the importation of drugs was a reasonable response to the threat to the lives of his family. However, there was a clear inference to that effect from his evidence that he believed that the threat was genuine and was concerned that if he did not do as he was told, the threat may come to fruition (T.288, T.294). The applicant appreciated that what he was being asked to do likely involved drugs (T.441). He gave evidence that he considered lawful ways of dealing with the threats and came to the conclusion that these would be ineffective and that he must comply "because of what was at stake" (T.487.31).
On the basis of this evidence, there was an available inference that the applicant reasonably believed that assisting in the importation of drugs was a reasonable response to the threats of harm (including death) against his family. As recognised by French CJ in The Queen v Khazaal, evidence that is capable "of supporting the inference that the matter to which the evidential burden applies exists or does not exist" will be sufficient to discharge the burden (at [12]). That issue also should have been left to the jury.
It is not necessary in these reasons to consider the effect of the applicant's plea of guilty after his defence of duress was taken away from the jury. It was conceded by the Crown that the plea of guilty was brought about by the ruling that the issue of duress would not be left to the jury's consideration. Further, it was common ground that duress was the predominant issue in the trial, if not the only real issue. In R v Chiron [1980] 1 NSWLR 218 Street CJ held that where a plea of guilty was entered following a ruling by the trial judge admitting over objection, inadmissible and prejudicial evidence in the Crown case, it was the admission of that evidence with the consequential significance attaching to it in the accused's mind, which was the predominating factor leading to the change of plea. Accordingly, Street CJ held that the plea of guilty must be regarded as tainted. The same principle applies here.
The proviso
The Crown submits that, should the conviction appeal be made out, this is a proper case for the appeal to be dismissed upon the application of the proviso in s 6(1) of the Criminal Appeal Act because no substantial miscarriage of justice has actually occurred.
On that issue, the Crown relied upon Giourtalis v R [2013] NSWCCA 216 where Bathurst CJ (Hidden and Button JJ agreeing) said (at [84] - [88]) that recent cases on the proviso had emphasised that it is a necessary but not always sufficient precondition for the operation of the proviso that the appellate court be persuaded beyond reasonable doubt that the evidence properly admitted at the trial proved the guilt of the accused. If the court is not satisfied of that matter, it cannot conclude that no substantial miscarriage of justice occurred. In considering this matter, the Court is performing essentially the same function as when it decides whether a jury verdict should be set aside as unreasonable.
Giourtalis v R held that there were no universally applicable criteria as to when it would be inappropriate for a court to apply the proviso, even though it was satisfied of guilt beyond reasonable doubt. The primary question was whether there had been a substantial miscarriage of justice.
The Crown submitted that having regard to the primary judge's acceptance that the applicant had satisfied the test under s 10.2(2)(a) of the Code the relevant evidence was that of the applicant bearing on the requirements of ss 10.2(2)(b) and (c) which was supported, to a limited extent, by his witnesses. The Crown submitted that if the primary judge erred as pleaded in the conviction ground of appeal, this Court would still be satisfied that no substantial miscarriage of justice has actually occurred and dismiss the appeal. The Crown submitted that assuming such error, the primary judge's statement of reasons for withdrawing duress from the jury's consideration was consistent with the test in s 13.3 of the Code, complied with the requirements of s 10.2(2) and was supported by the authorities on the latter, particularly Oblach v The Queen.
Guidance on the application of the proviso was provided by the High Court in Weiss v The Queen [2005] HCA 81; 224 CLR 300. There the Court said:
"35 The fundamental task committed to the appellate court by the common form of criminal appeal statute is to decide the appeal. In so far as that task requires considering the proviso, it is not to be undertaken by attempting to predict what a jury (whether the jury at trial or some hypothetical future jury) would or might do. Rather, in applying the proviso, the task is to decide whether a "substantial miscarriage of justice has actually occurred".
…
41 That task is to be undertaken in the same way an appellate court decides whether the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported having regard to the evidence. The appellate court must make its own independent assessment of the evidence and determine whether, making due allowance for the "natural limitations" that exist in the case of an appellate court proceeding wholly or substantially on the record, the accused was proved beyond reasonable doubt to be guilty of the offence on which the jury returned its verdict of guilty. There will be cases, perhaps many cases, where those natural limitations require the appellate court to conclude that it cannot reach the necessary degree of satisfaction. In such a case the proviso would not apply, and apart from some exceptional cases, where a verdict of acquittal might be entered, it would be necessary to order a new trial. But recognising that there will be cases where the proviso does not apply does not exonerate the appellate court from examining the record for itself."
Here, the issue of duress was incorrectly taken from the jury. The issue of duress was the primary, if not the only, question before the jury. The jury, unlike this Court, had the benefit of seeing and hearing the applicant and his witnesses give evidence on this question. Even though this Court may have reservations as to the veracity of some of that evidence, the Court has to take account of the "natural limitations" preventing it from reaching a final conclusion on that issue. The question of duress was a quintessential jury question which required the jury to make an assessment of the veracity and reliability of the applicant and his witnesses.
It follows that on the facts of this case, a substantial miscarriage of justice has occurred in that the very raison d'être for the trial was taken away from the jury. The applicant has not had a trial according to law. In those circumstances, the proviso should not be applied. The applicant is entitled to a new trial.
Sentence appeal
In view of the conclusion which I have reached in relation to the conviction appeal, it is not appropriate for this Court to consider the appeal against sentence.
Conclusion
1. The appeal against conviction is allowed.
2. The applicant's conviction for attempting to possess a commercial quantity of a border controlled drug is quashed.
3. There should be a re-trial on that count.
HARRISON J: I agree with Hoeben CJ at CL.
SCHMIDT J: I agree with Hoeben CJ at CL.
[3]
Amendments
04 October 2016 - Removed "Publication restriction".
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 04 October 2016